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Australia: Age is a Concern – Recent Decisions demonstrate the Risk of Unlawful Age Discrimination

Authors: Amy Zhang, Justin Pen and Angela Zhang

Gutierrez v MUR Shipping Australia Pty Limited [2021] FedCFamC2G 56

In Gutierrez v MUR Shipping Australia Pty Limited, Mr Alex Gutierrez, a long-serving chief accountant, was awarded damages of $20,000 for non-economic loss suffered after being subjected to age discrimination by his former employer, MUR Shipping.

The Federal Circuit and Family Court of Australia found that MUR Shipping had breached the Age Discrimination Act in two ways: section 18(2)(a) by moving Mr Gutierrez from his ongoing employment contract to a fixed term contract due to his age, and section 18(2)(d) by disrespecting Mr Gutierrez by not taking his word that he would retire at the time he specified, imposing a fixed term contract on him and expecting him to train his replacement, against whom he was “treated less favourably”.

Although the Court found that Mr Gutierrez did not suffer any economic loss (as he chose to resign when there was no need to do so), it awarded him $20,000 damages for non-economic loss for the offence and hurt caused by MUR Shipping’s conduct. In awarding those general damages, the Court took into account the “mild adjustment disorder” Mr Gutierrez suffered as a consequence of the discussions with MUR Shipping regarding the changes to his terms of employment.

In addition, the Court also ordered that MUR Shipping issue an apology to Mr Gutierrez, observing that such apology was “likely…at least as valuable to [Mr Gutierrez] as the payment of damages”.

Galstaun v Adept Underpinner Pty Ltd [2021] NSWCATAD 75

In Galstaun v Adept Underpinner Pty Ltd, Adept Underpinner, a construction company, was ordered to pay damages of $3,470.40 to Mr John Galstaun, a 61-year-old labourer, for breaching the age discrimination protections of the Anti-Discrimination Act 1977 (NSW) (“NSW Act”).

The New South Wales Civil and Administrative Tribunal heard that Mr Galstaun had called Mr Leslie McDougall, the sole director of Adept Underpinner, in response to a job advertisement for a casual construction worker role. Mr Galstaun’s evidence, accepted by the Tribunal, was that during that phone call, Mr McDougall asked him how old he was, laughed at his age, and stated that Mr Galstaun would have a heart attack and that he was too old for the job before ending their call. Mr Galstaun said this phone call had affected his confidence to undertake further construction work for about six months.

The Tribunal found that Adept Underpinning had breached section 49ZYB(1)(b) of the NSW Act by unlawfully discriminating against Mr Galstaun during that phone call, awarding damages totaling $3,740.40, made up as follows:

  • economic loss damages ($1490.40) reflecting the monies Mr Galstaun would have earned had he not been subjected to the discriminatory language during the phone call and consequently suffered a loss of confidence that limited his ability to perform work;
  • non-economic loss damages ($1,500) for the hurt, humiliation and distress Mr Galstaun suffered, the Tribunal noting that such award “should not be minimal as this would tend to trivialise or diminish respect for the public policy behind anti-discrimination legislation”; and
  • aggravated damages ($750) reflecting the derogatory language used in a letter responding to Mr Galstaun’s age discrimination complaint against Adept Underpinning, in which Mr McDougall, through his legal representatives, alleged that Mr Galstaun’s experience was limited to “part time bits and pieces labouring roles”.

Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2) [2021] FCA 1149

In Australian Building and Construction Commissioner v CoreStaff WA Pty Ltd (No 2), a labour hire and recruitment company, and a construction, transport and mining services company, were both penalized for their part in refusing to employ Mr Peter Selsmark, a 70-year-old prospective employee, because of his age, in contravention of the Fair Work Act 2009 (Cth) (“FW Act”), during a hiring process for a grader operator, conducted by CoreStaff and Gumala. The proceedings were commenced by the Australian Building and Construction Commissioner.

The Court had evidence of an email to Mr Selsmark from CoreStaff, stating “Sorry Peter, no joy with the role at Gumala due to your age mate” and an earlier email from Gumala to CoreStaff stating: “[W]e had [Mr Selsmark’s] details already, he applied directly with us. He has all the tickets we are looking for however he [sic] age is a concern – 70 years old.

The Court found that CoreStaff had contravened section 351(1) of the FW Act, which prohibits an employer from taking adverse against a person because of, among other things, their age. The Court also found that Gumala had “advised, encouraged or incited” CoreStaff’s breach of the FW Act, which itself constituted a contravention pursuant to section 362 of the FW Act.

In imposing fines of $20,000 against CoreStaff and $9,000 against Gumala, the Court also ordered that 50% of such penalties be paid to Mr Selsmark, observing that “[h]e was an innocent party in the circumstances and the target of the discrimination. 

Key Action Points for Human Resources and In-house Counsel

The above cases demonstrate that individuals and regulatory agencies are taking a proactive stance against age discrimination in both employment and pre-employment processes. Employers and in-house counsel are advised to:

  • ensure comprehensive policies and staff training measures are in place, to avoid any structural issues or conduct that may potentially amount to age discrimination towards employees, whether current or prospective;
  • understand the obligations that exist to avoid discriminatory practices when introducing changes to an employee’s terms of employment or implementing broader workplace policies and processes; and
  • keep comprehensive file notes of all dealings with employees, whether current or prospective.